A new decision from Arbitrator Arbus.

The Applicant was involved in an incident (the “Incident”) on December 31, 2012. The Applicant was on shift as a taxi driver. The Applicant responded to a call for pick-up and picked up three passengers at a grocery store. An argument started between the passengers and the Applicant, and one of the passengers punched the Applicant in the face. The Applicant then stopped the taxi and the passengers exited the van, leaving one of the rear doors ajar. The Applicant exited the taxi to close the door and was shoved once by one of the passengers, whereupon he fell into the ditch and was injured.

Arbitrator Arbus applied the two part test from Greenhalgh v. ING Halifax. The purpose test asks if the incident arose out of the ordinary and well-known activities to which automobiles are put. Arbitrator Arbus found that the Applicant was driving his van in one of the ordinary and well-known activities to which automobiles are put; to pick up and transport passengers.

The second test, the causation test, asks if the use and operation of the automobile directly caused the impairment. In Greenhalgh, the Court of Appeal analyzed this causation test by stating that the legislation requires a direct link of causation which they stated will depend on the circumstances of each case.  Arbitrator Arbus went on to find:

1. the Applicant’s impairment would not have occurred “but for” him operating his taxi. His driving of the van clearly would not be an irrelevant cause;

2. the intervening act of the assault by one of the passengers or the Applicant slipping on the ice is sufficient to disentitle the Applicant’s claim; and

3. there was no dominant feature of the accident, to quote, “I do not feel that you can isolate either the assault by one of the passengers or the slipping on the ice by the Applicant from the entire chain of events which was tied into the use and operation of the automobile.”

The case law is split on when slipping while disembarking is a “direct” result of the use or operation of an automobile.  The reference to slipping on ice in the analysis above is a curious one where there was no factual finding that the claimant slipped on ice, although it was twice mentioned in the reasons for the arbitrator’s decision that he did.

The case law is not split on assault, which is clearly an intervening act (for example, in Downer v. Personal Insurance Company, 2012 ONCA 302).  As stated in that case by Justice LaForme, for the Ontario Court of Appeal:

Under the modified causation test from Chisholm and Greenhalgh, it is not enough to show that an automobile was the location of an injury inflicted by tortfeasors, or that the automobile was somehow involved in the incident giving rise to the injury. Rather, the use or operation of the automobile must have directly caused the injury.

Laskin J.A.’s reasons in Chisholm illustrate this point. In that case, a driver was catastrophically injured by gun shots while driving his car. Laskin J.A. explained, at para. 29, that the gun shots caused the impairment suffered by the driver, not the use or operation of the vehicle:

[E]ven accepting that the use of Chisholm’s car was a cause of his impairment, a later intervening act occurred. He was shot. An intervening act may not absolve an insurer of liability for no-fault benefits if it can fairly be considered a normal incident of the risk created by the use or operation of the car — if it is “part of the ordinary course of things”. . . . Gun shots from an unknown assailant can hardly be considered an intervening act in the “ordinary course of things”. The gun shots were the direct cause of his impairment, not his use of the car.

Similarly in this case [Downer], the assault on the plaintiff as he sat in his car sorting his money cannot fairly be considered as a normal incident of the risk created by the use or operation of the car.

In Downer, the Court of Appeal was willing to parse out injuries that were caused by the use or operation of an automobile, and those that were not. If the Applicant was injured when he was struck, then pushed into the ditch, the Court of Appeal would likely disagree with Arbitrator Arbus. If the Applicant did slip on ice while actually using the vehicle (disembarking, opening a door etc), this may be the correct outcome. Based on facts as set out in this decision, it is impossible to tell whether that was the case.

Broadly, however, this case seems much more on all fours with the case of Kumar v Coachman [2004] O.J. 4421 a Divisional Court decision upholding Arbitrator Sandomirsky, and Director’s Delegate Makepeace. Leave was denied to appeal the case to the Supreme Court of Canada [2005] SCCA 1995, File No: 30721. In that case, Mr. Kumar, a taxicab driver, was assaulted by a passenger as part of an attempted robbery, following which his taxicab rolled into a ditch. It was held that he was not involved in, and his injuries did not result from, an “accident” within the meaning of s. 2(1) of the Schedule. The Kumar case was not cited by Arbitrator Arbus in his decision

If you have any questions about this blog or a similar file please contact Eric Grossman.